Civil rights questions raised in phone seizure

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»Play VideoDavid Silva, a man who died early Wednesday, May 8, 2013, after a struggle with Kern County deputies near Kern Medical Center in Bakersfield, Calif., is seen in a photo provided by his family.

David Silva, 33, died early May 8 after a confrontation with seven officers from the Kern County Sheriff's Department and two California Highway Patrol officers. Witnesses said they saw a number of baton strikes by officers, and two family members got cell phone video.

Within a few hours, the witnesses say officers were at their home. "When they went out to the house of this family and demand the cell phones, they were absolutely wrong," attorney Daniel Rodriguez said. He's representing the man and woman who had the phones.

Rodriguez says the witnesses' right to freedom of speech was violated. "We wouldn't be in this predicament if this had been allowed to be posted on YouTube or Facebook," the attorney said. "It's her private property, she could do whatever she wants with it." He said officers ordered the family not to post the videos to the Internet.

"Technically, maybe they could tell them not to because they were saying that's evidence of a crime that somehow I'm going to seize," defense attorney Kyle Humphrey said. "But, I've looked at the law, and I can't see any basis in which the police could make that a lawful order."

Humphrey is not a part of this case, but worries it raises a series of questions over civil rights. "Freedom of expression, your property rights in what you filmed or saw, you have privacy rights in being left alone," Humphrey lists. He also questions whether protections against illegal search and seizure were violated.

The witnesses have told Eyewitness News the officers stayed at their home for hours waiting for a search warrant to allow seizure of the phones. The family said they weren't allowed to come or go.

Attorneys question whether the officers could "freeze the scene" like that. "This was not the crime scene, the crime scene was over at the hospital," Rodriguez asserts.

Last week, Kern County Sheriff Donny Youngblood said the seizure of the phones may lead to judicial review. "The courts ultimately will make that decision whether we did something right, wrong or indifferent from a legal standpoint," he predicted.

Youngblood announced last week the video is being analyzed by the FBI, and that agency is also doing a "parallel investigation" into the officers' behavior. The sheriff said it's not known yet what caused Silva's death, the results of toxicology tests still need to come in. He called this a "lengthy' investigation.

The sheriff's department has reported a deputy responded late May 7 to an area across from Kern Medical Center on reports of a possibly intoxicated man. They say Silva resisted that officer, and others were called out for what resulted in an eight-minute confrontation. Silva was later pronounced dead at Kern Medical Center.

On Tuesday, KMC Chief Executive Officer Paul Hensler told Eyewitness News the hospital has video that night of Silva inside the hospital, but nothing that shows the area of the confrontation. Hensler said KMC records show Silva at the emergency room at 10:20 p.m. asking for directions to the mental health department.

Silva was later "third in line" at the mental health department, but he "wandered off," according to Hensler. The CEO said usually a staffer will check whether someone represents an emergency, if not -- they're asked to wait. Hensler said a KMC security guard later reported seeing Silva sleeping on the grass at the hospital, he was then escorted across the parking lot.

It was a KMC security guard who later saw Silva sleeping on the sidewalk across the street, and then asked a deputy to check on Silva's welfare. That officer was sent out just before midnight, according to the sheriff's department.

That's about when the witnesses say they happened to be leaving KMC, and spotted the incident.

Their cell phones were seized the morning of May 8, and returned to the family late last week. Authorities said only one phone actually had video on it. Technicians for police and the FBI have said they don't know how or why the second phone has no video, as the witnesses reported it did.

The video released by Rodriguez on Tuesday shows no baton strikes by the officers. The attorney says that video was taken after the officers used their batons. Rodriguez said he believes the earlier part of the confrontation was captured on the other phone. That's the video that's now missing.

Rodriguez says the officers had no right to take the cell phones and the video. "There is a right way to gather evidence and there is a wrong way to gather evidence," he said. "When they went out to the house of this family and demanded the cell phones -- they were absolutely wrong."

The attorney says they'll file a lawsuit with the goal of holding authorities accountable.

"We're considering filing and asking for the court to put an injunction in place that will require the sheriff's department to train and educate the deputies on what they can do and can not do when it comes to seizing videos taken on a cell phone," Rodriguez said.

Humphrey sees that possible civil action also in larger terms, saying it's important to put issues in front of a jury so they can address the impacts on society.

Humphrey also thinks the courts and legislature need to address how officers must handle the current widespread use of cell phones. The attorney says so many people use cell phones in so many ways, and this raises privacy issues. "We really need the legislature to step in and recognize that," Humphrey said. "Then we can have a very clear, distinct, bright line of what the police can and can't do, and what the citizen can -- and can expect."